Dunn v. O'neill

Lumpkin, J. (After stating the foregoing facts.) " I. Prior to the constitution of 1868, the inferior court, when sitting'for county purposes, had jurisdiction “in levying a general tax for general purposes, and a special tax for particular purposes, according to the provisions of this Code.” Code of 1863, § 286; Code of 1868, § 346 (2). By section 530 of the Code of 1868 (Code of 1863, § 468), it was declared that “the county buildings are to be erected and kept in order and repair at the expense of the county, under the direction of such justices, who are authorized to make all necessary contracts for that purpose.” Section 531 (Code of 1863, § 469) declared: “It is the duty of the justices of the inferior court to erect or repair, when necessary, [827] their respective court-houses, and jails,” etc. Section 536 declared: “The justices of the inferior courts of the several counties have the power to levy an extra tax sufficient to carry into effect sections 530 and 531, without a recommendation by the grand jury, whenever the necessity arises.” By the constitution of 1868 the inferior courts were abolished, and their unfinished business and the duties of the justices were transferred to such tribunals as the legislature might designate. Code of 1873, § 5126. The ordinaries were to perform the duties of the inferior courts until otherwise provided by law. Code of 1873, § 5149. Thereafter the word “ordinary” or “ordinaries” was substituted for “inferior courts” or “justices of the inferior court” in later codes in dealing with such matters. Civil Code (1910), §§ 399, 400. By the constitution of 1868 it was also provided that the legislature might create county commissioners in such counties as might require them, and define their duties. Code of 1873, § 5127. In 1873 the legislature created a board of commissioners for Murray county. The first section of the act, so far as it is material to this ease, was as follows: “That, from'and after the passage of this act, there shall be established in the county of Murray a board of five commissioners of revenue, roads, bridges, ferries, paupers and pauper’s fund, with full power to levy all taxes for county purposes; to appoint all road.commissioners; to establish new roads and abolish old ones; to establish or abolish ferries; to build and repair bridges; to change* lines of militia districts or to establish new districts; to appoint overseers of the poor, and to say who shall be beneficiaries of the pauper fund.” The fifth section was: “That the said board shall have all the powers the inferior court had prior to the adoption of the constitution of 1868, as prescribed by the Bevised Code on all county matters, but shall have no other jurisdictipn.” Acts 1873, p. 282. This act has been twice amended, but the amendments are not material to the case now -before us. Acts 1882-3, p. 505; Acts 1893, p. 365. We think it is plain that the act of 1873 conferred on the commissioners of Murray county authority to erect a court-house for the county. The argument that the law conferred on them the power to levy all taxes for county purposes, but left the power to erect the court-house in the ordinary, is ingenious but unsound. [828] 2. The contention that the building of the court-house and its heating equipment must be let as a whole, and that the performance of the contract should be enjoined because it did not provide for heating the building, is concluded by the decision in Carruth v. Wagener, 114 Ga. 740 (40 S. E. 700). 3. The plaintiffs alleged that notice of the proposal for bids and the letting of the contract was not posted at the court-house door, as required by law. The commissioners denied this allegation, and an issue of fact was raised. By the Civil Code (1910), § 388, whenever the contract for the building of a court-house or other public work in a county is likely to cost more than $5,000, “the proper officer shall give notice in the public gazette wherein the sheriffs sales are advertised, once a week for four weeks, and by posting a written .notice at the court-house door for a like time, which notice and advertisement shall embrace such details and specifications as will enable the public to know the, extent and character of the work to be done, and the terms and time of payment.” Section 389 requires the taking of a bond from the contractor. It also provides that “it shall be unlawful to let out any contract for the building or repairing of any public building, bridge, or other public work, unless the provisions of these sections are complied with; and any contractor doing, or having done, any work of the kind in any other manner shall not be entitled to receive pay therefor.” An exception is made as to work which can be done af a cost less than $300. It has been held that a failure to obey the requirement as to the contents of the notice and advertisement renders the contract illegal. Dyer v. Erwin, 106 Ga. 845 (33 S. E. 63). It has also been declared that a substantial compliance will suffice. Pilcher v. English, 133 Ga. 496 (66 S. E. 163). If no notice is posted there is not a substantial compliance. It is unnecessary to consider whether, if a notice be posted, and subsequently be torn down by some careless or malicious person, without the consent of the, commissioners, this would alfect the validity of the contract. No such ease is presented here. The issue is made whether the notice was posted -at all. Sellers, the clerk of the commissioners, made affidavit that he posted the notice before the court-house door more than thirty dayg before the contract was let (which was on May 25, 1915), and that it.remained so posted until, after the letting of the contract. He was [829] corroborated by several other witnesses. (The court-house referred to is the building in which the superior court is held.) On the other hand, a witness testified by affidavit to the effect that on May 4, 1915, he examined the court-house doors at the only place in or around the building where legal notices were posted, and that no notice of the inviting of bids for the erection of a courthouse was there posted; that the other witness mentioned below was present, and posted on the facing of the door a notice of the intention to introduce in the legislature a local bill; that a notice of a bond election was the only notice posted on the court-house door at that time; and that these notices remained there at the time when the affidavit was made. Another witness testified by affidavit, that, just after he had information that a contract was to be let, he examined the court-house doors to see if any notice had been posted, inviting bids for the erection of a court-house, and that there was no notice posted; that sometime afterward he posted a notice of an intention to introduce certain local legislation; that there was not then posted any notice of the proposed letting of the contract for the building of the court-house; and that the witness mentioned above was present on the last occasion. A third witness testified that about the 14th or 15th of May he went up and down the steps of the court-house; that he examined the courthouse door to see if any notice of the proposed letting of the contract had been posted on or at it; and that there was no such notice posted on the door at that time, which he could find. The contemplation of the statute is, that, in posting a notice, it will be fastened or fixed so that it may reasonably be expected to remain for four weeks. In other words, it is a posting having some permanency. Where the testimony introduced by the defendants tended to show that the notice was posted more than thirty days before the contract was let, and remained so posted, evidence to the effect that not long after the time when it was claimed that the posting was done, and at several times before the contract was let, the notice was not posted, had evidential value in determining whether in fact the notice was posted at all, and raised a conflict as to that point. The order of the presiding judge grant- ' ing the injunction was general in character, and may have rested on his finding on this issue of fact. We can not say that it did not do so; and if he thus found such issue (so far as to authorize [830] the interlocutory decree) in favor of the allegation that there was no posting, we can not hold that he abused his discretion in such finding. Accordingly, on this ground, the judgment is Affirmed. All the Justices concur.